Maybe we’ve got things back to front. Maybe we’re putting the constitutional cart before the horse.

The federal government, the provinces, a couple of territories and sundry other intervenors are all in front of the Supreme Court arguing over how each of several possible reforms to the Senate could be enacted, according to whichever of the Constitution’s many amending formulae is held to apply in each case.

The government’s lawyers have gamely maintained that much of its short-term agenda for Senate reform — term limits, consultative elections and so on — could be pursued unilaterally. At the other extreme, abolition, they submit, could be achieved under the Constitution’s general amending formula: seven provinces with 50% of the population.

The consensus view is that the feds are out to lunch. Almost no one supports them in their first position; and while three provinces agree that seven-and-fifty is sufficient for abolition, the rest insist that unanimity is required. And if that is so, everyone seems to agree, it’s not going to happen.

If every province’s consent — and by province, of course, we mean premier — were required, then any one premier could stop it. Thus each would have an incentive to demand the moon as the price of his consent. The whole process would bog down in the same mire that sank Meech Lake and Charlottetown.

Suggest a national referendum as a solution and be prepared for the scorn that blows your way. Meaningless! No legal consequence! Whatever the people might wish, the Constitution requires the premiers’ consent to amend it. If the premiers don’t want it — if even one premier doesn’t want it — then it’s not on.

Let’s just stop and savour the implications of this. The people of Canada could vote by their millions to abolish the Senate, and it wouldn’t make a dime’s worth of difference. An overwhelming popular consensus could be trumped by a single premier. As a matter of law, of course, this is correct. But as a matter of democratic principle, is there not something deeply wrong with this?

And so once again we come face to face with the most dysfunctional part of our Constitution: not the Senate, but the amending process. It isn’t only the Senate we’re talking about after all. The same refrain is heard in any constitutional debate: no matter what the proposed reform, it not worth even talking about, because — altogether now — it would mean opening the Constitution. And that can’t happen, because, you know.

Constitutions aren’t supposed to be easy to amend. But when a Constitution cannot even be amended in obedience to the desires of the vast majority of its people, it is no longer the embodiment of their highest ideals of government. It is an impediment to them. It is less a basic law than a straitjacket.

If the Constitution belongs to the people, it follows that the people should have the power to approve or reject amendments to it, by referendum

The problem isn’t so much the level of consent that is required, but whose. The Constitution is supposed to belong to the people. In fact it belongs to the premiers — a legacy of the patriation round. Before then it was unclear just whose consent was required. The British North America Act was silent on the matter: As an act of the British Parliament it was assumed that any amendments to it would be enacted by the same means.

At one point in the patriation battle the Trudeau government threatened to “go to Westminster” on its own, and might well have done so had the Supreme Court not invented a convention requiring a “substantial consensus” of the provinces. This gave the premiers a strong bargaining hand in the talks that followed. The final document was a victory for provincial rights in many respects, and nowhere more so than in the amending process. The premiers were given a hammerlock on the constitutional future of the country, with the consequences we are now seeing.

So rather than tinker about with the Senate, maybe it’s time we got at the root of the problem: to take back control of the Constitution from the premiers, as earlier we took it back from Britain. Needless to say, this would be difficult: to amend the amending formula requires unanimity. But that’s no more, at least according to the consensus view, than what is required to abolish the Senate. In for a penny, in for a pound.

If indeed the Constitution belongs to the people, it follows that the people should have the power to approve or reject amendments to it, by referendum — as is the case, for example, in Australia. Whether you required, in addition to a majority of the population as a whole, a majority in a majority of the provinces, or in all four regions, or some other formula, is secondary: the principle that ought to apply is that it is the people, not the premiers, who are sovereign.

Pipe dream? Suppose, instead of a referendum on Senate abolition, one were held on the principle of popular control of the amending process. Still doubtful? Here’s the kicker: in another of its flights of constitutional fancy, the Supreme Court held in the secession reference that a referendum on constitutional change in any one part of the country would oblige the rest to enter negotiations. What is true of the part must be true of the whole. A referendum of the whole country would surely oblige the premiers as a group to negotiate the final transfer of sovereignty, concluding the unfinished business begun in 1982.

Postmedia News

]]>http://news.nationalpost.com/2013/11/13/andrew-coyne-take-control-of-the-constitution-away-from-premiers-then-fix-the-senate/feed/0stdconstitutionA blot on Canadian history: First the Queen signed our Constitution, then an activist threw paint on ithttp://news.nationalpost.com/2013/07/19/a-blot-on-canadian-history-first-the-queen-signed-our-constitution-then-an-activist-threw-paint-on-it/
http://news.nationalpost.com/2013/07/19/a-blot-on-canadian-history-first-the-queen-signed-our-constitution-then-an-activist-threw-paint-on-it/#commentsFri, 19 Jul 2013 20:10:30 +0000http://news.nationalpost.com/?p=330113

Library And Archives CanadaThe damaged Proclamation of the Constitution now remains always under glass.

HAILEYBURY, Ont. — The corner house on the quiet street looks well cared for. There are yellow flowers in the garden, canoe paddles leaning against the back door, a child’s bicycle in the front yard and a barbecue on the porch. Inside, the sound of happy voices, chattering away, some late-afternoon merriment interrupted by my knock at the screen door.

A little girl answers, and calls for her father. Peter Greyson appears, stepping from the home’s shadowed interior into the daylight. He is a slight man, 54 years old, soft-spoken and almost painfully polite. He apologizes for not returning my phone calls and speaks to me, amiably, about his life in Haileybury, a sleepy Northern Ontario town on the shores of Lake Temiskaming. He tells me that he is a single father, and that he still paints. But mostly, he says, he has been busy raising his eight-year-old twins.

“I haven’t really been in the headspace to think about the past very much,” Mr. Greyson says, shrugging in the direction of his daughters. “It was a long time ago. People around here know what I did — but no one ever asks me about it.”

Even if they did ask it is unclear what, exactly, Peter Greyson might say, since all he is willing to say to me about July 22, 1983, the day 30 years ago he dumped red paint on the Proclamation of the Constitution Act, 1982 — a vital Canadian historical document, signed by Queen Elizabeth II and then-prime minister Pierre Trudeau, that repatriated the Constitution and formally acknowledged Canadian sovereignty — is this: “I have no comment.”

But James M. Whalen of Fredericton, N.B., does have comment. In fact, it is a day, a story, he thinks about often, a cascade of events that, for years afterward, left him with nightmares. Mr. Whalen, a retired archivist, was working at the Library and Archives Canada building at 395 Wellington St. in Ottawa when Peter Greyson showed up.

Mr. Greyson was 24, an art student from Toronto. He was polite. He was well-dressed.

“He said he wanted to study the artistic design and calligraphy of the proclamation,” Mr. Whalen recalls, from his Maritimes home. “I retrieved it from the storage vault and laid it on a flat surface. No sooner had I laid it out than he whipped out a glue bottle — he had an Elmer’s safety glue bottle in his suit pocket — and poured red paint all over the document.

Library and Archives CanadaThe red stain covers some of the signatures on the document but they can still be read.

“I was stunned. Our job as archivists was to preserve and protect documents. I was flabbergasted. I grabbed his arm and he didn’t resist. I asked him why he did it and he said he was protesting American cruise missile testing over Canadian airspace.

“But I couldn’t see the connection between what he was saying and what he did. The logic seemed off to me.”

His aim, however, was dead on. Smoke, spilled drinks, crumbs, a leaky roof, mould and moth damage, these were among the worst-case scenarios for an archivist. But the willful destruction of an essential part of Canadian history, by a Canadian, had never happened before.

The proclamation, one of two existing copies — the other original was damaged by rain the day it was signed — was a big red mess. Geoffrey Morrow, the Archives’ senior conservator, raced to the scene from a basement laboratory. Using a small vacuum with a fine nozzle he sucked away the excess paint. What remained was a sizable red splotch. Meanwhile, shock waves reverberated through the archival world.

“We had this idea that there might be a conspiracy, that there might be people all over destroying prestigious documents,” Mr. Whalen says. “We didn’t know if [Greyson] was acting alone.” (A second bottle of Elmer’s glue filled with blue paint was discovered in his briefcase.)

Precious items were locked down. Procedures for viewing them altered. The Archives purchased a glass viewing case. The most significant parchments would henceforward be viewed by the public, if at all, only under strict supervision and only under glass.

But what to do about that red spot?

There was talk of cutting it out and transplanting in a fresh piece of paper. Chemical solvents were considered. Even laser removal surgery discussed. In the end a decision was made to do nothing.

“To cut a piece out of it would have altered the document,” Mr. Whalen says. “It would no longer have been authentic. And the other unique thing about it was that the Queen signed two copies, which was highly unusual. The one that she signed outdoors, it was raining, and somebody picked it up and accidentally rubbed it on their clothes and it got smeared, a bit.

“And the other one had paint thrown on it. So in my world we refer to them as the rained and the stained.”

Keith Minchin for National PostRetired archivist James Whelan with some memorabilia from the event: “We had this idea that there might be a conspiracy, that there might be people all over destroying prestigious documents.”

The stained (and the rained) currently reside in a state-of-the-art, climate-controlled vault in Gatineau, Que. The temperature is 18 degrees Celsius, the relative humidity constant at 40%.

“The document has held up fine,” says Catherine Craig-Bullen, manager of conservation treatment at Library and Archives Canada. “There is still a big red splotch on it, and it covers some of the signatures on the document, but you can read the signatures through the stain.

“We do bring it out on occasion for special tours. But you, Joe Public, if you wanted to see it — the odds are — no, you won’t.”

The document is now framed, and even when it is removed from the vault, on those rare occasions, it is often kept in a locked display case.

“[Greyson] defaced a national document, and it is tragic,” Ms. Craig-Bullen says. “But it is also interesting because the paint is so much a part of its history that when people request to see the proclamation they quite often request to see the paint-stained copy.”

Peter Greyson pleaded guilty to willfully damaging public property in October, 1984. He faced a maximum penalty of 14 years. Ottawa Judge David McWilliam sentenced him to 89 days in jail, to be served on weekends, plus two years probation and 100 hours of community service. Judge McWilliam noted that Mr. Greyson was an excellent student with no previous criminal record and quite possibly “a brilliant artistic future.”

‘He was young and he did something stupid, I guess’

Mr. Greyson never expressed remorse for his actions. He served his sentence, graduated, got a job in advertising, represented some Toronto artists as an agent and lived a low-key life before moving to Haileybury about 10 years ago.

His most recent job, which he resigned from several months ago, was as curator of the Temiskaming Art Gallery, a facility built, in part, with federal funds. Walter Pape, a local artist, sits on the gallery’s Board of Directors that hired Mr. Greyson in September, 2010.

“I never asked him about his past and I only heard about it after we hired him from people on the Internet,” Mr. Pape says. “It was never an issue. He was hired and he did a good job, and you can’t hang something like this over a person’s head for the rest of their lives.

“He was young and he did something stupid, I guess.”

Library and Archives CanadaThis original copy of the Proclamation of the Constitution Act, 1982, is informally known as the 'stained' version.

James Whalen is less forgiving: “Somebody told me he was in charge of a gallery, and I thought he should be in charge of a paint store,” he snorts.

Mr. Greyson never did make it big, at least not in the art world, at least not yet. He paints landscapes of the local area, which, once upon a time, played muse to the Group of Seven. But he does not sell his work.

Toward the end of our conversation on the porch he sketches a Peter Greyson original in my reporter’s notepad — hand drawn directions to a nearby hiking trail where, he says, photographer Tyler Anderson and I could stretch our legs after a long drive.

“You guys should have brought a canoe,” he says.

Polite to the end, he takes my phone number, email address and promises to call — if he changes his mind about talking, if he decides to answer the question left hanging in the air: does he regret what he did, all those years ago?

I am still waiting for an answer. I imagine I am not the only Canadian who is.

QUEBEC — Stephen Harper says people are “fed up” with the old constitutional battles that have been around his entire life as demands grow for Ottawa to disclose key documents over over the patriation of the Constitution.

The prime minister was making his first official visit to Quebec on Friday since allegations surfaced that Supreme Court of Canada justices intervened in the patriation of the Constitution.

When asked by a reporter about the controversy, Harper said his government’s priority is the economy of the 21st century and not the constitutional disputes of the 1980s.

“I think that the whole population is fed up with this discussion,” Harper said shortly after he announced 55 clean-energy projects at a hotel in Quebec City.

“We’ve lived with this for all my life, all our lives.”

Harper’s remarks drew applause from the dozens of people in the Tory-friendly audience, which included cabinet ministers, party staffers and partners in the newly announced energy projects.

The allegations over the Constitution stem from a new book by historian and journalist Frederic Bastien.

In the book, Bastien writes that Bora Laskin, then chief justice of the Supreme Court, gave information to the Canadian and British governments on the discussions among the justices about the legality of patriation.

The federal New Democrats and Quebec provincial parties have been pressuring Ottawa to disclose documents pertaining to the alleged misconduct.

NDP Leader Tom Mulcair has stressed that Canadians have a right to know whether there was political interference in the Supreme Court’s deliberations on the legality of patriating the Constitution from Britain.

The Conservative government has reiterated it has no interest in reopening constitutional fights of the past.

The Supreme Court launched an internal investigation into the accusations, but reported that it had found no documents on the matter.

The 1982 patriation of the Constitution has always been a controversial subject in Quebec, whose separatist government of the day felt betrayed by other provinces.

Quebec was the only province that refused to endorse the document.

On Friday, Harper was also asked about the refusal of a growing number of his Conservative MPs to send their constituents the party’s latest attack against newly appointed Liberal leader Justin Trudeau.

The taxpayer-funded pamphlet — called a “ten-percenter” — features a message matching recent, negative TV ads about Trudeau that say he lacks the experience and judgment to govern.

The reluctant Tory MPs have said they don’t think this type of an offensive is appropriate.

Many people have the impression that the Canadian Constitution is dull or boring. They would be wrong. In a new book, I set out to bring the Canadian Constitution alive, directly to each and every Canadian.

This is no small feat because the original version of the law that created Canada — the British North America Act, 1867 — isn’t even located in Canada. The “BNA Act,” as it often is affectionately called, was an Act of the British Parliament and the document is still physically located in England.

In the United States, the original copies of the Declaration of Independence and the Constitution are displayed publically and proudly at the National Archives in Washington, D.C. Americans stand in long lines to catch a quick glimpse of their founding documents. Canadians cannot. (There is a group dedicated to patriating the BNA Act to Ottawa and you can find them at www.BringBackTheAct.ca.)

Worse yet, Canadians cannot even view the official Proclamation that Queen Elizabeth signed on April 17, 1982 to bring into force the Canadian Charter of Rights and Freedoms and the rest of the Constitution Act, 1982. That’s because in 1983, an art student poured red paint over a copy of the Proclamation at the National Archives to protest Canada’s decision to allow American missile testing in Canada. A large stain remains as restoration specialists feared that attempts to remove it would further damage the document.

So it’s not that easy to see our Constitution and it’s not that easy to get a hard copy of it either. (Thankfully, it is readily available online). The Government of Canada has published a bilingual consolidation of the text of the Constitution with no explanation. To those in the field, it is known somewhat affectionately as “the Little Green Book” because of the colour of its cover. It is not widely available, and a few years ago I discovered to my horror that it was out of print.

To repeat: The only hard copy of our Constitution — the blueprint for our country’s system of government — was out of print. Even more disturbingly, it appeared that I was the only one that seemed to notice.

That was the moment that I knew that I had to write a book to put the Canadian Constitution into the hands of as many Canadians as possible.

The word “constitution” comes from the verb “constitute,” which means “to establish” or “to compose or to form.” A constitution helps to provide the glue that keeps a country together as a political unit. It provides the foundational law for a country. In this way, a constitution can be thought of as a rulebook for a country in the same way that there is an official rulebook for hockey or for Monopoly. But a constitution is much more than a book of rules. A constitution also can be a symbol and a source of values. It can inspire or it can disappoint.

In many ways our Constitution helps to form all of us. It is often said in legal and political circles, somewhat disappointingly, that our Constitution gave us “peace, order and good government” (Constitution Act 1867, s. 91) while the Americans got “life, liberty and the pursuit of happiness.” In Canadian constitutional lingo, “peace, order and good government” is known as “POGG.” The acronym symbolizes Canada; and without knowing a single thing about the Canadian Constitution, millions of immigrants have been drawn to Canada since 1867 because of their belief that Canada would offer them a place of peace, order and good government. For all that ails us in this country, there is great truth in this belief.

Americans stand in long lines to examine the Declaration of Independence and Constitution. Yet the equivalent Canadian documents are not even on public display

As I have written before in these pages, we can identify a distinctly “Canadian constitutional model.” Our Constitution and our constitutional structure are the envy of people around the world (though you wouldn’t always know it from the way that our Charter is casually mocked here at home by media pundits), and Canadians have been involved as advisors in constitution-making in places such as South Africa, Sri Lanka, New Zealand and Israel.

Yet, our Constitution is much more than the written documents that are contained in my book. It is the living breathing experience of Canadians in their daily lives. It is that spirit of democracy and tolerance that makes Canada the great country that it is.

An American judge named Learned Hand once said: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” We take far too much for granted in this country. It is my hope that my book will help contribute to Canadians’ greater appreciation about our Constitution and our country.

Certainly, there is much about our Constitution that many Canadians would find surprising.

For example, I would suspect that given the importance of the Prime Minister in our government and day-to-day politics, most Canadians would expect to find some explanation of the powers of that office in our Constitution. Yet people are surprised to discover that the powers of the Prime Minister are nowhere set out in our constitutional scheme. In fact, the term wasn’t even referenced in the text of our 1867 Constitution.

A reference to the “Prime Minister” showed up for the first time in 1982, but in a strange way. Section 35.1 of the Constitution Act, 1982 deals with situations in which a conference involving the federal and provincial governments must be convened to discuss constitutional amendments. The Prime Minister is identified as both a participant and an organizer of such conferences. To the uninitiated, it would seem as if the Prime Minister were an event planner rather than the holder of the most powerful office in the country.

Yet to the Fathers of Confederation, there was no need to even mention the Prime Minister in the BNA Act because in the preamble they noted that we were to have “a Constitution similar in principle to that of the United Kingdom.” Of course, in 1867 and still to this day, much of the United Kingdom’s Constitution is unwritten. Thus, we inherited this idea that aspects of our own Constitution are unwritten, like the idea that the Prime Minister must command the confidence of the elected branch of Parliament (i.e. the House of Commons).

There are many other surprises in our Constitution. Just as the Prime Minister wasn’t mentioned in the BNA Act, 1867, so too is the Supreme Court of Canada nowhere to be found. Granted, section 101 of that Act gives the federal government the power to create a “General Court of Appeal for Canada” and of course in 1875 it did in fact create the Supreme Court of Canada. However, when the Constitution was patriated in 1982, the Supreme Court was not explicitly added to our Constitution. (Restrictions were added to the Constitution about changes to the Supreme Court, though — even though the Constitution does not explain its basic functioning.)

In my book, I reveal some of the interesting history surrounding the high court and its judges. For instance, in 1945, a clerk at the Soviet Embassy in Ottawa named Igor Gouzenko defected to Canada claiming that Soviet Premier Joseph Stalin was trying to steal nuclear secrets and plant sleeper agents in North America. Gouzenko’s revelations often are noted as marking the beginning of the Cold War. It is rumoured, but cannot be confirmed, that after Gouzenko defected, the RCMP hid him on the 4th floor of the new Supreme Court building, which was then controlled by the Department of Defence and had not yet been turned over to the judges.

The Canadian Constitution contains many other revelations and anecdotes about the Supreme Court and our Constitution, my hope being to convince Canadians that their Constitution is in fact neither dull nor boring. In fact, it contains great stories of our success as a country. But like many things Canadian, those stories are not well-appreciated by our own citizens. It is time for that to change.

National Post

Adam Dodek is an award-winning law professor at the University of Ottawa. His book The Canadian Constitution was published by Dundurn this month. It includes the full text of our Constitution plus explanation and commentary for all Canadians. You can read more about online.

MONTREAL — Spare a thought for the elected members of the Parti Québécois, who even though they are in government must regularly summon up the kind of outrage typically expected from opposition benches.

Two weeks ago it was reforms to the federal Employment Insurance regime that the PQ government portrayed as an assault on Quebecers. Before long it will be Canadian multiculturalism that is at odds with the secular values the PQ wants to enshrine in a new charter. When you are a party seeking to dismantle Canada, you are on a constant search for affronts from Ottawa.

This week, we are seeing that even perceived insults dating back more than 30 years to Pierre Trudeau’s time as prime minister are fair game.

A new book by Montreal historian Frédéric Bastien digging into events around the 1982 patriation of the Canadian Constitution have created a stir in sovereigntist circles. The conventional wisdom among Quebec nationalists has long been that René Lévesque, Quebec premier at the time, was double-crossed during negotiations by his counterparts and the resulting Constitution was imposed against Quebec’s will.

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Now, in La bataille de Londres (The Battle of London), Mr. Bastien has unearthed correspondence from British archives showing that in the run-up to patriation, two Supreme Court justices appear to have shared information about the court’s deliberations with Canadian and British government officials.

Mr. Bastien writes that in 1981, as the Supreme Court considered the constitutionality of Mr. Trudeau’s plan to patriate the Constitution without the approval of the provinces, the late Bora Laskin, then chief justice, was in contact with officials in London and Ottawa. He advised them that the court was divided and that the decision was going to take longer than expected, the book claims. The book also says Willard Estey, another justice, had advised Britain’s high commissioner to Canada in 1980 that the issue was headed for the Supreme Court.

The evidence suggests a troubling breach of the wall that is supposed to separate the executive from the judiciary. The Supreme Court announced an internal review last week after learning of Mr. Bastien’s findings in the media. ‘‘The Court takes its institutional independence and the confidentiality of its deliberations very seriously, and it is reviewing the substance of these allegations,’’ it said.

Mr. Bastien likens the judges’ actions to a coup d’état, and on Tuesday Premier Pauline Marois called them ‘‘very serious irregularities.’’ But in the end, far from securing a victory for Mr. Trudeau, Justices Laskin and Estey were in the minority when the court ruled in 1981 that Ottawa could not amend the Constitution unilaterally but required ‘‘a substantial degree of provincial consent.’’

Wayne Cuddington/Postmedia News files***FREELANCE PHOTO - POSTMEDIA NETWORK USE ONLY*** TORONTO: NOVEMBER 21, 2011--MICHELLE DUBARRY/RUSSELL ALLDREAD--Michelle DuBarry (born Russell Alldread) applies lipstick at George's Play in Toronto on Monday, November 21, 2011. Michelle is known as "Toronto's oldest drag queen" and will celebrate her 80th birthday on Wednesday, November 23. For story by Melissa Leong. (Kara Dillon for National Post)

Stephen Scott, a constitutional expert and professor emeritus at McGill University law school, said that if the judges ‘‘were revealing the progress of deliberations within the court to people outside, with a view of influencing events or otherwise, this was entirely improper.’’ But, even if they were, their efforts were fruitless.

‘‘Whatever meddling, whatever indiscretions Laskin and Estey may have committed, seem to me to have had absolutely no impact on the outcome of the negotiations and the ultimate deal,’’ Mr. Scott said. ‘‘A negotiation took place despite their view, because they were in the minority.’’

On Tuesday, Quebec’s National Assembly passed a unanimous motion calling on the federal government to open its archives to ‘‘shed full light’’ on the events leading up to the the 1982 Constitution Act.

Both Liberal House leader Jean-Marc Fournier and Coalition Avenir Québec leader François Legault played along. But Mr. Fournier noted that Mr. Lévesque himself had welcomed the Supreme Court’s 1981 ruling. Mr. Legault stressed that there are many more pressing issues facing Quebec.

There certainly are, but they do not necessarily offer the Péquistes the chance to play what Mr. Scott considers their signature role. ‘‘They are brilliant at indignation,’’ he said, and they count on the public being confused. ‘‘A stink is established and somehow the whole patriation process is sullied,’’ he said, ‘‘and it’s kind of one more nail in the coffin of the legitimacy of the patriation.’’

QUEBEC — The Supreme Court of Canada says it will investigate allegations that some of its members intervened in the repatriation of the Constitution.

The high court’s decision came after urging by Quebec’s Parti Québécois government for Ottawa to “open its books” on the events that led to the repatriation of the Constitution by Pierre Elliott Trudeau’s federal Liberals in 1982.

The call by Quebec Intergovernmental Affairs Minister Alexandre Cloutier on Tuesday came after the publication of a book that alleges Supreme Court of Canada magistrates interfered in the political process and engaged in backroom discussions.

The judiciary “cannot interfere with the political powers — that’s the basics of democracy,” Cloutier told a news conference Tuesday.

A spokesman for the Supreme Court indicated Tuesday the court is concerned by the questions about its credibility and feels it necessary to investigate.

“The court attaches great importance to its institutional independence and to the confidentiality of its deliberations,” said Owen Rees, executive legal officer for the court, in a statement obtained by several media. “It is reviewing the content of these allegations.”

The book, which was released Monday, was written by historian and journalist Frederic Bastien.

Bastien writes that Bora Laskin, then chief justice of the Supreme Court, provided information to the Canadian and British governments on the discussions between magistrates about the legality of repatriation.

Another high court judge, Willard Estey, also secretly advised the British government in 1980 that the Supreme Court would address the issue, the author wrote.

Bastien suggests that both jurists violated the principle of separation of executive and judicial powers. Bastien’s information was gathered during eight years of digging through documents, including British Foreign Office archives.

All provinces except Quebec, which was then led by sovereigntist premier René Lévesque, endorsed the Constitution in 1982. Two attempts to bring Quebec on board since have both failed.

Jacques Boissinot/The Canadian PressAlexandre Cloutier, Quebec minister for intergovernmental affairs: “It ... shows just how far prime minister Pierre Elliott Trudeau was ready to go and what means he was willing to use to force the Constitution down the throat of Quebecers.”

Cloutier said the new allegations are troublesome in that Quebecers not only had a Constitution imposed on them, but also because judges named by the federal government allegedly intervened in the case.

“It also shows just how far prime minister Pierre Elliott Trudeau was ready to go and what means he was willing to use to force the Constitution down the throat of Quebecers, gestures that are extremely serious,” Cloutier said.

An irked Cloutier said the subject matter discussed was very sensitive and Quebecers deserve to know the truth about what happened.

“It’s the first time that I’m personally aware a Supreme Court justice would have intervened during the repatriation period,” Cloutier said.

“That’s a huge problem for the respect for democracy and institutions.”

Cloutier wants the federal government to make public all the documents relating to the repatriation and “discuss what really happened.”

‘I understand the PQ wants to reopen the constitutional battles with Pierre Trudeau’s former Liberal government. We do not intend to play in that movie’

But the request was dismissed by Ottawa.

“I understand the PQ wants to reopen the constitutional battles with Pierre Trudeau’s former Liberal government,” said Carl Vallee, a spokesman for Prime Minister Stephen Harper.

“We do not intend to play in that movie, we will remain focused on what really matters to Quebecers, Canadians: jobs and growth.”

Premier Pauline Marois vowed the Quebec government wouldn’t stand idly by in the face of Bastien’s revelations of what he describes as a “constitutional coup d’état.”

The matter will be discussed by PQ ministers during their weekly cabinet meeting on Wednesday.

The other parties in Quebec City say they’re interested in answers but add little would be changed 30 years after the fact.

The Liberals’ Jean-Marc Fournier was prudent in his comments. The party’s new leader, Philippe Couillard, has said he’s in favour of reopening talks on the Constitution.

Fournier emerged from a party caucus meeting and said repatriating the Constitution without Quebec’s approval was a missed opportunity at Canadian unity.

Fournier said if there was judicial intervention, it would be troubling and he would except the federal government to be transparent in the file. But he questioned what opening the books would change now.

The leader of the Coalition for Quebec’s Future echoed that.

“They (the allegations) raise questions, but what does it change in the lives of Quebecers?,” wondered François Legault. “I also want the information, but I can’t see that it will change much.”

The past couple of weeks have offered a vivid demonstration of this country’s penchant, as someone once put it, for pulling ourselves up by the roots every so often to see if we’re still growing. Responding to the demands of precisely no one, the NDP offered up a private member’s bill, C-470, it proposes should replace the Clarity Act, the 1999 legislation setting the conditions under which the federal government would enter negotiations with “a province” — let’s call it Quebec — proposing to secede.

Where the latter required a “clear majority” on a “clear question” in a referendum on secession, the clarity or otherwise of both to be assessed by Parliament, the NDP bill sets out in black and white what at least one of them would mean: a majority of just 50% plus one. Moreover, it reverses the onus. Where the Clarity Act forbids the government from entering negotiations unless its conditions are met, C-470 obliges Ottawa to negotiate in that event.

The timeliness of this initiative is, shall we say, open to debate. The Parti Québécois may be in power in Quebec, but as a minority government it is in no position to call a referendum soon, and would not be even if it held a majority. To make matters more hypothetical, the bill’s sponsor, NDP democratic reform critic Craig Scott, holds down the very last spot — 240th out of 240 — in the lottery that determines the order in which private member’s bills are taken up. So there is zero possibility of this bill coming to a vote in the current Parliament.

Nevertheless, if the PQ were to win a majority, and if the NDP were to win the next federal election, and if the PQ were to hold a referendum, and if it were to win it, this might become an issue worth debating. As it is, it is almost as hard to take seriously the NDP’s critics as it is the party itself.

Notwithstanding the near universal scorn the NDP proposal has aroused, at least in the English-speaking media, the striking thing is how much the two sides are agreed. Both share the same bedrock assumption: that a vote of Quebecers, by itself, is sufficient to trigger negotiations on secession. They differ only on the size of the majority, or more particularly, whether to spell it out in advance.

The problem with the Clarity Act, the NDP likes to say, is that it is unclear. Well, no: that’s its virtue, as I’ll explain in a minute. In the meantime, be clear on this: Canada is under no moral or democratic obligation to dismantle itself in response to a vote of just one province, no matter how “clear” the majority.

I would say it was under no legal obligation, either, had not the Supreme Court, in its famous 1998 secession reference, invented a constitutional duty to negotiate, not only in response to a demand for secession but for any constitutional change, provided it had the support of a clear majority of “a province’s” voters — though the court, like the government, preferred to leave the meaning of “clear” unclear.

Also unclear is how enforceable this vague convention-without-a-precedent would be, or what exactly the rest of Canada would have to negotiate. What is clear, however, is that, notwithstanding the ecumenical language, this obligation would only ever apply with regard to Quebec. Suppose Alberta were to demand, backed by a referendum vote of 90%, that equalization be abolished. Does anyone pretend this would trigger negotiations with the rest of Canada, or that Quebec would show up if it did?

So people who claim to believe a clear majority of one province is enough to force negotiations do not actually mean it. They can’t. It’s preposterous. Democracy does not mean you get whatever you vote for, no matter how fanciful. It means you get what you’re entitled to. You can’t vote to help yourself to something that isn’t yours: for example, one-sixth of the territory of Canada. And a part of any population cannot decide, by itself, on matters that affect the whole.

But, you protest, we don’t accept a referendum vote as sufficient in itself to secede: only to force negotiations. That’s true, though it’s a fairly late-breaking development. For decades, the consensus position among federalists, even outside Quebec, was that secession was a matter exclusively for Quebecers to decide. But while it’s progress that conventional wisdom now obliges a seceding province to negotiate the terms of its departure, it does not follow that the rest of Canada is under the same obligation.

The only way the two sides would have anything to negotiate, after all, is if Quebec’s obligation to negotiate could be enforced — that is, if it could be prevented from seceding unilaterally. And if we could prevent it, why would we negotiate? In fact, the issue in such an unlikely event wouldn’t be whether we could prevent it, but whether a seceding government would be able to make it stick: that is, to evict an unwilling federal authority from its soil. That’s especially difficult to do when nearly half the province is dead set against the idea.

All right, it’s possible to imagine Quebecers voting by such an overwhelming majority that the rest of Canada would have to respond in some fashion — as a purely practical matter, that is. But quite how large a majority that would be is best left to the judgment of Parliament in the circumstances that presented themselves at the time.

Perhaps that strikes you as cynical. Fair enough: why should separatists have all the fun? Sovereignty, someone once said, is what you can get away with. Maybe federalism is what you can put a stop to.

“Ms. A” was 17 when she met 32-year-old billionaire “Mr. B,” who persuaded her to move with him to Quebec from her native Brazil. She wanted to get married. He refused. Seven years and three children later, their relationship ended.

Quebec law left her without any recourse to either spousal support or division of matrimonial property, which would have been available with a legal marriage. Her quest to have this legislative scheme declared unconstitutional as discriminating against de facto spouses was well-publicized, and attracted considerable support.

But on Friday, a majority of Supreme Court justices found that Quebec’s conscious decision to not provide these benefits to de facto spouses did not violate Ms. A’s rights. The decision has been criticized in recent days. But while sympathy toward “A” is understandable, the judgment is actually an outstanding model of “judicial restraint” — principled deference to legislative policy choices in matters involving the balancing of competing societal interests.

The case demonstrates the limitations of courts as appropriate venues to shape social policy. This Quebec legislative scheme did not arise by happenstance. The province’s National Assembly, recognizing Quebec’s changing sexual landscape, gave the issue considerable discussion and debate. It elected to treat de facto couples differently from couples in a legal marriage — not because it felt their unions were of less worth but because it wanted to maximize respect for the autonomous decision not to marry.

As such, private property rights that would otherwise exist under civil law are not disturbed absent positive steps to disturb them (i.e., entering a legal marriage). This celebration of autonomy is very much in keeping with Québécois culture. Indeed, no other province has adopted a similar regime. It would be patronizing in the extreme to rule that this considered policy choice, which enjoys widespread popularity in Quebec, is constitutionally impermissible.

Do some individuals, such as “A,” fall through the cracks? Undoubtedly. But the court does not know how many persons are in such disadvantageous relationships through no fault of their own, compared to how many have chosen not to marry to protect their property and celebrate their autonomy.

The legislature, on the other hand, has much more knowledge about how and why Quebecers choose to marry, whether their decision is truly informed, and the economic impacts of these intimate decisions. Overturning the scheme the government had established would have benefited “A.” But it would have affected the autonomy and property interests of over a million other Quebeckers in entirely unpredictable ways, and allow many to reap the protections that come from legal marriage without the responsibilities.

Reasonable people may disagree about the appropriateness of how Quebec has drawn its legislative priorities. But that is a separate question from constitutionality. In cases where multiple societal interests are involved and have been considered by the legislature, courts should not lightly be declaring Charter violations.

There are cases where courts should interfere with legislative or executive decisions — specifically, when a matter is peculiarly within courts’ expertise, if other parties do not lose anything, if the decision was not carefully made in the first place, and/or if it was obviously based on improper considerations. Criminal procedure rights, for example, are particularly suited for judicial enforcement. Such rights are frequently affected by a single police officer who took moments to come to a decision, as opposed to dozens of elected legislators who took months.

Judges do not have a monopoly on constitutional wisdom

Judges also deal with the criminally accused every day. Occasionally, legislatures do adopt policy goals that are per se illegitimate, and courts should not defer to them. This has happened in Canada, albeit rarely, such as when Attorneys-General argued that “preserving the traditional family” justified discriminating against homosexuals, a practice which also did not benefit heterosexuals.

But no one argued that protecting the liberty and property interests of individuals who have chosen not to marry is an illegitimate policy goal. Nor do courts have unique insight on the situations of the million-plus non-married cohabiting individuals in Quebec. Moreover, when it made its decision, Quebec’s legislature duly considered the interests of couples in de facto unions. Indeed, they represent a larger proportion of the population than anywhere else in Canada.

Nothing in this decision prevents Quebec’s legislature from reconsidering its priorities. And this goes to a further virtue exemplified by this Supreme Court judgment: Even Charter claims that do not provide redress for the claimant encourage healthy discussion.

Many Canadians assume that if a constitutional right is not enforced in a court, it is no right at all. But that is an impoverished understanding of how constitutions work. Judges do not have a monopoly on constitutional wisdom. Constitutional ideals emerge through lived practice — lived practice that is not confined to courtrooms.

By airing one’s grievance in a court, an individual draws attention to her predicament. Even if she loses her case, the law may change — but only after an informed legislative response.

A decade ago, the Supreme Court addressed similar Nova Scotia legislation. The claimant lost. Even so, five provinces and territories have changed their legislation of their own accord. Similarly, on Friday, Quebec’s Attorney General said he was open to changing the law notwithstanding the court’s decision. But it will be the legislature, having consulted the public, making that call. And Quebecers that would be affected by such a change in the law will have had fair warning.

Former Newfoundland premier Brian Peckford has literally rewritten history, prompting the Canadian Encyclopedia to substantially revise the story of the 1982 patriation of the Constitution.

The then-premier of Canada’s newest province now gets central credit in shaping the historic deal, with the encyclopedia playing down somewhat the significance of the famous “Kitchen Accord” led by future prime minister Jean Chrétien that up until now was largely thought to be the constitutional saga’s breakthrough moment.

Mr. Peckford, whose political memoir was launched Wednesday in St. John’s, used the 30th anniversary of patriation in April to raise objections to the prevailing “mythology” about how the deal was done during a high-stakes first ministers’ conference in Ottawa in November, 1981.

Now, the country’s main easy-reference resource for historical knowledge has examined Mr. Peckford’s claims, conducted additional research and — as the author of the revised patriation entry puts it — is now “giving credit where credit’s due.”

Carleton University political historian Stephen Azzi told Postmedia News that he read Mr. Peckford’s book as well as “copies of documents in his possession from this period.… They convince me that Mr. Peckford and the Newfoundland delegation played a significant role, one that has to be acknowledged properly.”

Mr. Azzi said he also spoke with other key players in the 1981 constitutional talks to confirm Mr. Peckford’s claims about how the landmark deal was struck.

Mr. Azzi, in an article also posted at the Canadian Encyclopedia website that explains how he came to accept much of Mr. Peckford’s claim, states the former premier’s account “brings long-needed balance to the story” of the 1981 constitutional bargain.

The patriation process was a complex series of manoeuvres, in which several individuals played pivotal roles

“The patriation process was a complex series of manoeuvres, in which several individuals played pivotal roles,” Mr. Azzi writes.

PNGFormer Newfoundland Premier Brian Peckford, seen in an undated photograph, launched his political memoirs — Some Day the Sun Will Shine and Have Not Will Be No More — on Wednesday in St. John's.

The revised entry pointedly details how Mr. Peckford’s proposal for a constitutional deal was presented to the “Gang of Eight” premiers — all but Ontario’s Bill Davis and Quebec’s Réné Lévesque — at a critical breakfast meeting at Ottawa’s Château Laurier hotel at the height of the constitutional impasse.

“After some minor adjustments, the federal government, Ontario, and New Brunswick signed on, and the deed was done,” the encyclopedia entry now states.

The federal-provincial conference — a last-ditch bid to end months of wrangling over constitutional reforms, and to avoid having the federal government of then-prime minister Pierre Trudeau act unilaterally on the issue — is well known to have produced the final patriation deal, though Quebec’s rejection of the accord at the time left an enduring source of tension in the Canadian federation.

Key sticking points were a constitutional amending formula, provincial qualms about the scope of the charter being championed by Trudeau, and federal concerns about the provinces’ demand for a controversial “notwithstanding” clause, aimed at overriding certain provisions of the charter in exceptional circumstances.

Tyler Anderson / National PostRoy Romanow, left, holds up the original kitchen accord while Roy McMurtry, middle, and Jean Chrétien look on during a conference marking the 25th anniversary of the charter on April 12, 2007.

The 30-year story of the Chrétien-Romanow-McMurtry [breakthrough] is a myth

Narratives of the negotiations typically credit Mr. Chrétien — then Trudeau’s justice minister — and attorneys general Roy McMurtry of Ontario and Roy Romanow of Saskatchewan with outlining the basic terms of an agreement on a napkin while cloistered in a cooking area at the Government Conference Centre in Ottawa, directly across the street from the Château Laurier.

The 70-year-old Mr. Peckford — then the 39-year-old Progressive Conservative premier of Newfoundland and Labrador — has made a campaign of “setting the record straight” since he started researching his political memoirs, titled Some Day the Sun Will Shine and Have Not Will Be No More. “The 30-year story of the Chrétien-Romanow-McMurtry [breakthrough] is a myth,” Mr. Peckford told Postmedia News in April.

Ted Cruz’s victory in Tuesday’s Texas Republican runoff for the U.S. Senate nomination is the most impressive triumph yet for the still-strengthening tea party impulse. And Cruz’s victory coincides with something conservatives should celebrate, the centennial of the 20th century’s most important intra-party struggle. By preventing former President Theodore Roosevelt from capturing the 1912 Republican presidential nomination from President William Howard Taft, the GOP deliberately doomed its chances for holding the presidency but kept its commitment to the Constitution.

Before Cruz, now 41, earned a Harvard law degree magna cum laude, he wrote his Princeton senior thesis on the Constitution’s Ninth and 10th Amendments, which if taken seriously would revitalize two bulwarks of liberty — the ideas that the federal government’s powers are limited because they are enumerated, and that the enumeration of certain rights does not “deny or disparage others retained by the people.” Both ideas are repudiated by today’s progressives, as they were by TR, whose Bull Moose Party, the result of his bolt from the GOP, convened in Chicago 100 years ago Sunday — Aug. 5, 1912.

After leaving the presidency in 1909, TR went haywire. He had always chafed under constitutional restraints, but he had remained a Hamiltonian, construing the Constitution expansively but respectfully. By 1912, however, he had become what the Democratic nominee, Woodrow Wilson, was — an anti-Madisonian. Both thought the Constitution — the enumeration and separation of powers — intolerably crippled government.

Espousing unconstrained majoritarianism, TR disdained Madison’s belief that the ultimate danger is wherever ultimate power resides, which in a democracy is with the majority. He endorsed the recall of state judicial decisions and by September 1912 favored the power to recall all public officials, including the president.

TR’s anti-constitutional excesses moved two political heroes to subordinate personal affection to the public interest. New York Sen. Elihu Root had served TR as secretary of war and secretary of state, and was Roosevelt’s first choice to succeed him in 1908. Massachusetts Sen. Henry Cabot Lodge had long been one of TR’s closest friends. Both sided with Taft.

As the Hudson Institute’s William Schambra says (in “The Saviors of the Constitution,” National Affairs, Winter 2012, and elsewhere), by their “lonely, principled” stand, Root and Lodge, along with Taft, “denied TR the powerful electoral machinery of the Republican Party, which would almost surely have elected him, and then been turned to securing sweeping alterations” of the Constitution. Wilson won with 41.8 percent of the vote (to TR’s 27.4 percent). Taft won 23.2 percent, carrying only Vermont and Utah, but achieved something far grander than a second term — the preservation of the GOP as an intellectual counterbalance to the Democrats’ thorough embrace of progressivism and the “living” — actually, disappearing — Constitution.

Today, many of the Tea party’s academic despisers portray it as anti-democratic and anti-intellectual. Actually, it stands, as the forgotten heroes of 1912 did, with Madison, the most intellectually formidable Founder. He created, and the Tea party defends, a constitutional architecture that does not thwart democracy but refines it, on the fact that in a republic, which is defined by the principle of representation, the people do not directly decide issues, they decide who will decide. And the things representatives are permitted to decide are strictly circumscribed by constitutional limits on federal power.

TR sought to make these limits few — and as flimsy as cobwebs when the people chose to amend them by plebiscitary methods. The New Republic, then a voice of progressivism, ridiculed Root for being “committed to the theory of government, based upon natural rights” — the Declaration of Independence’s theory of pre-political rights. Schambra, however, argues that for Root and Lodge, as for today’s Tea party, the rights proclaimed in the Declaration and the restrictions the Constitution imposes on government are inseparably linked, as Root said, to “the end that individual liberty might be preserved.”

The GOP’s defeat in 1912 — like that in 1964 under Barry Goldwater, whose spirit infuses the tea party — was profoundly constructive. By rejecting TR, it preserved the Constitution from capricious majorities. When Cruz comes to the Senate, he and like-minded Republicans — Utah’s Mike Lee, Kentucky’s Rand Paul, South Carolina’s Jim DeMint, Wisconsin’s Ron Johnson, Pennsylvania’s Pat Toomey, Florida’s Marco Rubio, and, if they win, Indiana’s Richard Mourdock, Arizona’s Jeff Flake and perhaps some others — can honour two exemplary senatorial predecessors by forming the small but distinguished Root-Lodge Caucus.

The winner of the prestigious Donner Prize, an annual award for the best book on Canadian public policy, was announced last night by Allan Gotlieb, chairman of the Donner Canadian Foundation, at a gala awards dinner at the Carlu in Toronto hosted by Don Newman, chairman of Canada 2020. The $50,000 prize was awarded to the authors of Democratizing the Constitution: Reforming Responsible Government. An op-ed summarizing the thesis of the book, written by its two surviving authors, appears below:

Last month marked the 30th anniversary of the patriation of the Canadian constitution and the adoption of the Charter of Rights and Freedoms. What should have been an occasion to reflect upon Canada’s constitution as a whole, a critical organ for our democratic well-being, with few exceptions, devolved into a series of polarizing partisan critiques: Who did and did not sufficiently celebrate the Charter’s birthday? Was the Charter the best or worst thing that has happened to our country? How severely has patriation and the amending formula hamstrung Canada?

No one likes grim news. But the reality is that parts of Canada’s constitution have left our democratic fortitude in critical condition.

In our book, Democratizing the Constitution: Reforming Responsible Government, we examine the dysfunctions that plague our parliamentary system. In particular, we look at the specific powers that enable prime ministers to silence Parliament, inhibiting MPs from ensuring that the government is accountable to the citizens it serves.

We submit that there has been a breakdown in the shared understanding of the unwritten parts of our constitution — the constitutional conventions — and that this breakdown now allows a prime minister to exercise a particular set of sweeping powers known as the reserve powers.

These have always been, and continue to be, the Crown’s prerogative powers that are “legally” left to the discretion of the monarch’s representative, the governor-general. With limited exceptions, prime ministers have exercised full discretion with respect to summoning, proroguing and dissolving the House of Commons. In other words, the prime minister seems to have the unchecked power to decide when the House should be in session, when elections should occur, and even, in some circumstances, when their governments do or do not have the confidence of the House.

Access to these powers confers an enormous political advantage to a sitting prime minister in both majority and minority situations. In the past 100 years, prime ministers have only once encountered resistance from governors-general in their use of these powers.

Our written constitution, which is silent on the relationship between the governor-general and the prime minister, does not offer us help in determining in whose hands these reserve powers truly lie. Absent a consensus among experts, pundits and politicians with respect to the unwritten parts of the constitution, it is impossible for these conventions to serve as a constraint on a prime minister’s power. This in turn makes it impossible for Canadians to be sure what, exactly, their constitution articulates.

Of course, the reserve powers are but one source of a prime minister’s might.

In the House, the prime minister and government have considerable control over day-to-day operations. This allows governments not only to set the agenda, but to carry it out with ease. The prime minister commands the steadfast loyalty of his MPs, largely through a carrot-and-stick approach; co-operative MPs might be rewarded with cabinet posts or coveted committee positions, while rogues can be — and at times are — punished with removal from caucus or even barred from running as a candidate for the party in future elections. All of these are vestiges of prime ministerial power. The party caucus has little leverage with which to counterbalance the prime minister’s power because party leaders are chosen (and replaced) by the party at large, rather than by the caucus. Thus, the government’s MPs have no effective mechanism through which to stand their ground against a very powerful leader or effectively represent his or her constituents.

Rather than becoming more like a system of presidential executive authority, this situation has left Canadian prime ministers in a position more akin to historical monarchs. The evolution of Westminster democracy in Canada is very much a story about the struggle to wrestle power away from the Crown and shift it to Parliament, and specifically the House of Commons, our primary democratic body and check on unfettered prime ministerial power. The ability of prime ministers to retain and use these Crown powers, alongside other powers over MPs and the House of Commons, is resulting in a situation where prime ministers have the power to make decisions, partisan and otherwise, that limit or negate Parliament’s role as a guardian for accountability in our democratic system.

This is not simply about politics or even personalities. Almost all recent prime ministers have used these powers to try to advance their partisan interests. What it is about is the erosion of our democratic institutions and the effect on democratic governance.

Politicians and parties are not the only ones who bear responsibility for this. The situation is also the result of a lack of attention from academic experts, the media, pundits and a general lack of understanding of citizens as to how our democratic system is supposed to work.

These are real challenges, with real consequences: Less transparency, less debate, less effective scrutiny of public policy and less accountability. But workable solutions do exist.

The most effective means for addressing these challenges would be formal, written constitutional amendments, such as those that we describe in Democratizing the Constitution. Less formal measures, such as cabinet manuals, do not have the same capacity to act as effective constraints on prime ministers.

Of course, there is little appetite for constitutional change. There is a palpable fear, expressed by politicians, voters, scholars and journalists alike, of opening the Pandora’s Box that is the constitution.

Understandably, no one wants to relive the political instability and national discord that characterized the Meech Lake and Charlottetown accords, Canada’s two most infamous efforts at constitutional change. But this collective fear of entering into constitutional negotiations has become a major impediment to positive and necessary democratic reform. This renders us incapable of fixing real problems. It also reflects our immaturity as a country.

Despite this collective fear of “opening the Constitution,” the status quo has become an untenable proposition. It is time that we overcome this paralytic fear. Constitutional reforms should never be so easy that they become routine, but nor should they be an impossibility. The bar set by the amending formula could be reached with political will in Parliament and at the ballot box.

The main reforms described in our book seek to address the problems posed by the breakdown of the constitutional conventions relating to how Parliament works. We propose some firm, clear rules that constrain prime ministers’ power over the practices governing confidence and the summoning, prorogation and dissolution of Parliament.

We also advance some modest proposals that would reduce the ability of prime ministers and their governments to dominate parliamentary and political party structures and procedures, such as reinstating the ability of caucus to remove a leader and chose an interim replacement and to reduce the size of cabinet.

These measures are designed to restore Parliament as an effective check on prime ministerial power, ensure an effective House of Commons and limit the potential to use these powers for partisan interests.

Ultimately, these reforms are about ensuring responsible and effective government for all Canadians.

National Post

Mark D. Jarvis is a doctoral candidate in the School of Public Administration at the University of Victoria. Lori Turnbull is associate professor, Political Science, at Dalhousie University. Their book, Democratizing the Constitution: Reforming Responsible Government, co-authored with the late Peter Aucoin, has been short-listed for the Donald Smiley Prize. Last night, it was named the winner of the Donner Book Prize. For more information, or to order the book, see emp.ca/dtc.

]]>http://news.nationalpost.com/2012/05/02/mark-d-jarvis-lori-turnbull-canadian-prime-ministers-have-too-much-power/feed/0stdBOOK-25-FATHERS DDAndrew Coyne: Time to end the myth that the 1982 Constitution was bad for Quebechttp://news.nationalpost.com/2012/04/13/andrew-coyne-time-to-end-the-myth-that-the-1982-constitution-was-bad-for-quebec/
http://news.nationalpost.com/2012/04/13/andrew-coyne-time-to-end-the-myth-that-the-1982-constitution-was-bad-for-quebec/#commentsFri, 13 Apr 2012 23:37:56 +0000http://fullcomment.nationalpost.com/?p=74727

Thirty years later they are still at it: the grievance nursers, the unity warners, the federalism renewers and the statesman solvers and the whole shambling constitutional industry, still rolling, still meeting, still funded. Still.

There are people approaching their fifties who were not old enough to vote when the Queen signed the Constitution Act 1982 into law, snipping the last legislative strings tying the Constitution of Canada to the Parliament of Great Britain, entrenching a homegrown process of amendment within it, adding a Charter of Rights and Freedoms, and much else.

After several decades of failed attempts, this ought to have been a moment for great national celebration — as it should be now, on its thirtieth anniversary. But that is to reckon without this country’s capacity for pointless politicization, sterile debates and perpetual indignance. And so the only people who will be marking the occasion, aside from a little gathering of Liberals in Toronto, will be the ones most convinced the country suffered some terrible calamity with patriation that they alone can put right: the constitutional industry, again.

Polling data presented to a three-day conference in Montreal show that “patriation has left a deep scar that is not yet ready to be healed,” according to University of Ottawa political scientist Francois Rocher, quoted in the Globe and Mail. The evidence: Only 15% of Quebeckers surveyed in the Leger poll said the federal government was right to proceed, as the Globe reported it, “by patriating the Constitution without Quebec’s consent.”

As always, the remedy is more powers for Quebec: nearly 70% of Quebecers are said to require these to begin the healing process. In the event such concessions are not forthcoming — just 9% of those outside the province would offer any — it is claimed 45% of Quebecers would support the province becoming a separate country. The former Quebec minister of intergovernmental affairs, Benoît Pelletier, said it showed the necessity of reopening debate on the constitution in order to “bring Quebec back into the constitutional fold.” Otherwise, he said, Quebec would be “permanently excluded.”

Postmedia News filesThis is not René Lévesque's Parti Québécois. Sadly, there's not much he can do about it.

Let’s just hold it right there. There is no sense, none whatever, in which Quebec is “excluded” from “the constitutional fold.” The Constitution of Canada is the law of the land everywhere in Canada. It applies as much to Quebec, and to Quebecers, as it does to any other part of the country, and with as much popular consent: another recent poll, this one by CROP for the federalist group The Federal Idea, shows 80% of Quebecers think patriation was a “good” or “very good” thing, while 88% say the same of the Charter.

Even the provincial government, while it has never “signed” the 1982 Constitution — as if that were a requirement — has never hestitated to avail itself of the same document’s protections, whether arguing from its premises in court or invoking the notwithstanding clause. The only reason it has refused to formally endorse it is because it has not wished to lose a useful point of leverage over the rest of the country. And the only reason it has enjoyed such leverage is because of the readiness of the rest of Canada to believe such endorsement necessary — the constitution having been patriated, as the Globe put it, “without Quebec’s consent.”

But it wasn’t done without Quebec’s consent. It was without the government of Quebec’s consent, to be sure: the separatist government of René Lévesque. But patriation was supported, not only by Quebec public opinion, then as now, but by 72 of the 75 members of Parliament from the province. No, don’t wave that away: For if we concede that the only legitimate representatives of the people of Quebec are the members of the National Assembly, we might as well concede the whole ball of wax.

But weren’t those Quebec Liberal MPs massively rejected at the next federal election? Yes: in common with Liberals across the land. We’d just come through a vicious recession, and after 21 years of nearly unbroken Liberal rule, the country was heartily sick of them. Or if patriation was such a gift to the separatist movement, how is it that support for separation sunk to such lows in the years afterward? How did the Parti Québécois come itself to be so massively rejected in 1985?

If the intervening decades were tumultuous, it had nothing to do with any reduction in Quebec’s legitimate authority. Far from the centralizing document of myth, the 1982 Constitution did not take away powers from any province. It gave powers to the provinces — over resources, for example, to say nothing of the amending formula — while imposing several obligations on the federal government of particular interest to Quebec: on equalization, on language, on the composition of the Supreme Court.

The only respect in which the powers of the provinces were diminished was via the introduction of the Charter of Rights — though even here all provinces had access to the notwithstanding clause, while Quebec alone was permitted to opt out of certain provisions on minority language schooling. The “assault” on Quebec’s powers is as fictional as the “betrayal” of Lévesque by the other premiers — the ones he had already abandoned — and all the rest of the mythology that has surrounded that event.

It was, rather, the very efforts of the constitutional industry to close this supposed wound that condemned us to so many years of constitutional torment, beginning in 1986 with the long process of constitutional negotiations that led to the Meech Lake Accord, and only finally ending with the passage of the Clarity Act. And yet, all these years later, they are still at it. Still.

Equalization payments are intended to give all provinces the financial means to provide roughly equivalent services to their residents. This principle is embedded in our Constitution. But it doesn’t always work out that way. In fact, some provinces receive more than they need. Some receive too little.

Manitoba has proportionally more school-age children than any other province. Those extra students put pressure on the Manitoba government to spend more on education. Nova Scotia has proportionally more seniors than any other province. Those extra seniors mean higher demands on the Nova Scotia government to provide health care. Alberta’s wage rates exceed those of any other province. Those higher labour costs make it more expensive for the Alberta government to supply public services.

Equalization does admit that provinces differ, but only in terms of the revenue they are able to raise. It ignores differences in the expenditures they must make. The federal government helps out tax-poor provinces, but leaves those that must spend more to fend for themselves. Changing Equalization to incorporate differences in expenditure need would make the system fairer. Surprisingly, it might also cost the federal government less.

If recognizing differences in expenditure need makes equalization both fairer and less costly, why has Canada not followed other countries such as Australia along that path? The arguments typically put forward for ignoring expenditure need are not convincing.

Too complex? Expenditure need can be included in the equalization program fairly easily.

Too intrusive and distorting of provincial agendas? Incorporating expenditure need into equalization need not mean telling provincial governments how to spend their money or giving them a financial incentive to alter their spending.

Too subjective and open to manipulation? It is possible to measure differences in expenditure need objectively. For example, it’s a fact, not a judgment call, that seniors use the health-care system more, and that some provinces have older populations than others.

An equalization program that incorporates need will result in different outcomes. Currently, provinces receive equalization payments because they are able to raise less revenue. Some of these provinces also have comparatively low expenditure need. Quebec is a notable example. A fair equalization system, which reflected both the expenditure and revenue sides of the coin, would pay Quebec less.

Some provinces with above average expenditure need, such as Alberta, also have an extraordinary ability to raise revenue. Even a fair equalization system would not generate payments for Alberta.

Ontario is in a third category. It has both high expenditure need and below average revenue raising capacity. A fair equalization system that captured differences in expenditure need would increase Ontario’s payment.

The reduction in payments to some provinces would more than offset the increase in payments to others. Overall the fairer system would cost less than the current equalization program.

The legislation underpinning equalization payments must be renewed by 2014. As the federal and provincial governments consider changes, they should seriously consider expenditure need. Equalization has been operating in Canada for 55 years. It’s time we finally live up to our constitutional obligation.

After more than a decade of trumping up flabby justifications for a national securities regulator, Finance Minister Jim Flaherty and a phalanx of legal minds in Ottawa and on Bay Street thought they had landed on a winner: the global financial crisis and fear of international systemic risk. Ottawa, it was said, needed to take over securities regulation to save Canada from foreign financial contagion.

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In an unanimous and categorical whopper of a decision, the Supreme Court ruled Thursday that Ottawa’s proposed legislation to create a national regulator is unconstitutional. The court did not fall for the systemic-risk argument and in some cases almost laughed off the inconsistencies in Ottawa’s justifications for a national regime.Read more

In Saturday’s National Post, my esteemed colleague, George Jonas, made the compelling case for why university attendees should not be compelled to join student unions. He would, of course, dispute the use of the word case, because the idea that people should not be forced to join involuntary organizations would seem to be self-evident in a free society.

Mr. Jonas correctly points out that such a right is upheld by the Charter of Rights and Freedoms, but that it only applies to government. Whether a publicly-funded school falls under the rubric of the Charter is a question for legal scholars and outside the scope of this analysis.

But Mr. Jonas goes on to take issue with a press release from the Frontier Centre for Public Policy, which stated that, “The exercise of individual rights and freedoms such as the freedom to associate should only be restricted if there is an urgent need to do so,” and that, “None of the arguments that are used to justify compulsory student unionism meet this test.”

“Wait a minute! What test?” asked Mr. Jonas. “There’s no test. If there were, those of us who consider it important to live in a free society might as well start packing.”

This is where my colleague is, unfortunately, mistaken. There is a test, known as the Oakes test, which highlights the glaring inadequacy of the Charter to uphold our fundamental freedoms. I guess us freedom-loving Canadians better start picking out our luggage.

Mr. Jonas is not the first scholar to view some human rights as self-evident. The framers of the American constitution believed it “self-evident” that “all men are created equal” and that we have the “unalienable” right to “Life, Liberty and the pursuit of Happiness.”

But while America was born of revolution, Canada was formed through the same evolutionary process that created the dodo bird and the platypus — when Canada’s Constitution was patriated in 1982, our politicians were less willing to cede power to the individual.

This is shown by the fact that eight of the 10 provincial premiers tried to block the Charter by drafting their own version of the Constitution. The eventual compromise resulted in the worst stipulation ever conceived of in the drafting of a codified rights document.

On the evening of January 12, 1981, justice minister Jean Chrétien sat in front of the special parliamentary committee on the Constitution. “I am proposing that Section 1 read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” he said.

“This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.” Translation: “This will ensure that even though we pretend the public has rights that are fundamental to any free and democratic society, we can take them away at will, so long as we can convince a judge that such measures are justified.”

The language used by Mr. Chrétien would eventually become Section 1 of the Charter, which gives government the constitutional cover to infringe the supposedly “fundamental freedoms” that follow it. In order to figure out when such infringements are in fact justified, the Supreme Court came up with the Oakes test.

Using this two-step process, laws that violate our Charter rights must have a “pressing and substantial” objective, and the means of effecting the limit must be reasonable and proportional. The infringement has to be connected to the law’s objective; it has to be as minimal as possible; and it must balance the consequences of such a limitation, with the objective that is being sought.

So while Canadians do enjoy a great deal of freedom, there are certainly limitations placed upon those freedoms. And while Mr. Jonas argues that sometimes there may even be “justifiable homicide,” it is a travesty that we have allowed the state to murder our liberties in such a way.

OTTAWA — A pair of democratic rights groups are teaming up in a legal battle that is urging the nation’s top court to strike down Canada’s first-past-the-post electoral system on the grounds that it doesn’t protect guarantees under the Charter of Rights and Freedoms.

The case would argue that the Constitution protects the right of Canadians to have “effective representation,” which goes beyond having the right to cast a ballot.

The two groups, the Association for the Advancement of Democratic Rights and Fair Vote Canada, have also earned an endorsement from Green Party leader Elizabeth May.

“The key issue is not that it’s unfair to the Green Party,” May said Tuesday at a news conference with representatives from the two groups.

“It’s unfair to democracy. It’s unfair to voters, and I think it’s a big reason for the decline in voter turnout.”

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May noted that more than 80% of people vote in Scandinavian countries and some other European nations, but she said the lowest voter turnouts in the world occur in countries with first-past-the-post systems, such as Canada, the United States and the United Kingdom, where governments can be elected with majorities despite having received less than 50% of the ballots cast in elections.

The Association for the Advancement of Democratic Rights has failed in a previous legal challenge of Quebec’s first-past-the-post system. Now it’s hoping an appeal to the Supreme Court of Canada will be heard and could eventually overturn the previous court ruling, changing elections across the country.

Association spokesman Brian Gibb said the lower courts did not consider all of the empirical evidence.

The groups say they expect the Supreme Court to make a decision on whether to hear their case in about six months.

Despite backing the legal bid, May said people and the politicians would be the best ones to demand changes, noting that the Opposition New Democrats have traditionally supported changing the system.

She also said that Prime Minister Stephen Harper supported this type of democratic reform when he was in opposition, but later while in government told her privately that elected officials would not support reviewing the systems that got them elected.

“I can tell you, I’d definitely want to change the way by which I got elected,” said May, who became the first Green MP voted into office in the most recent federal election, capturing the B.C. riding of Saanich-Gulf Islands.

“I’d like to see proportional representation in place and I think our best way to get there is through public demands.”

Harper’s spokesman Andrew MacDougall said he was “hesitant to comment without seeing a record of this apparent conversation” between May and the prime minister.

MacDougall added that the government’s position on democratic reform is clearly outlined in legislation tabled in Parliament to increase representation in regions with growing populations, such as Ontario, Alberta and British Columbia, while protecting Quebec’s proportional representation in the House of Commons. The government has also introduced legislation to limit the terms of senators and open the door to allowing new senators to be selected based on elections in the provinces.

Fair Vote Canada has offered as much as $10,000 to support the legal challenge, matching donations from the public.

Woman kills Occupy Vancouver, self“The weekend death of a female protester at the Occupy Vancouver site has done incalculable damage to a global protest campaign that suddenly finds itself at a crossroads,” Gary Mason begins in TheGlobe and Mail. This strikes us, frankly, as nonsense. Generally “deteriorating conditions” at the protest sites in Vancouver and elsewhere pose a challenge for organizers and the cities they’re occupying — indeed, the more they deteriorate, the sooner the Occupists will likely decide to move on to the next phase, whatever that might be. But we don’t even know if these deteriorating conditions had anything to do with this unfortunate woman’s reported overdose. And so what if they did? People OD all the time in Vancouver, and they don’t shut the city down. Saving lives is an awfully lame political excuse to raze the occupied territories.

Colby Cosh, writing on his Maclean’s blog, suggests there are lessons to be learned by the Occupists in the (apparently) successful battle by some Western Canadian farmers to sell their wheat other than through the Canadian Wheat Board. One such lesson: “Deeds will accomplish more than any amount of eloquence.” Andy McMechin went to prison for taking his wheat to the United States in a pickup truck, and that, in Cosh’s view, did more to galvanize opposition to the CWB than any philosophical or economic arguments. So how, Cosh asks, is the Occupy movement going to advance its cause, whatever that may be? “It’s not really clear … how an ‘Occupation’ that is meeting no serious resistance from authorities anywhere is supposed to elicit sympathy.”

‘Round OttawaIn the National Post, after a head-spinning grand tour through much of the world’s history, particularly its monarchies, Conrad Blackarrives at a potential solution to Canada’s head of state problem: He proposes a sort of Royal Family-in-residence program, whereby “the Cambridges [would be] here for one or more five-year terms.” (This is an intriguing idea, though we fear Ottawa in January might not be quite what the Duchess imagined she was signing up for. Or Ottawa in July, for that matter — or Dhaka, New Delhi, Nairobi, Lagos, Islamabad, Dar es Salaam and Kampala at any time of year, if the more-populous-than-Canada Commonwealth nations demanded equal access to Wills and Kate.) Failing this, Black proposes “the Governor-General … become a co-chief of state with the Monarch, and not just a stand-in,” as the status quo is unbecoming of “a serious country.”

The age of big, bold political ideas is well and truly over, Chantal Hébert argues in the TorontoStar. And she suggests it all started with the repatriation of the Constitution which gave wings to Canadian populism and the parties — from Reform to the Bloc Québécois — that exploited it. Nowadays it’s the courts that make the big decisions, with the consent of most politicians and most of the population — which is a bit ironic, considering that’s sort of the opposite of populism. But the courts aren’t going to fix Canada’s “19th century institutions” by themselves, as Hébert says. When it comes to political courage, “the rule that if you don’t use it you lose it applies.” And, well, it’s gone.

Lysiane Gagnon, writing in TheGlobe and Mail, argues that non-bilingual Supreme Court justices are both acceptable and inevitable, since “requiring full bilingualism … would drastically diminish the pool of qualified candidates and virtually exclude those who come from Western Canada.” What really matters is that they are “exceptional legal scholars.” But the position of Auditor-General doesn’t require a comparable skillset and isn’t a comparable job, in Gagnon’s view. He “should be able to address Canadians in both official languages,” she argues, and “it shouldn’t have been that difficult to find a functionally bilingual accountant.” Fair argument. We just wonder if she isn’t overstating the ubiquity of qualified A-G candidates. People like Sheila Fraser don’t grow on trees, and we’d rather not settle for anything less.

Military affairsThe Post‘s editorialists deplore the mind-bogglingly terrible decision by an Ottawa high school to cancel a yearly Remembrance Day event at which “students [would] interact with Canadian military veterans, and examine military antiques, including uniforms, items of personal gear and some disabled military weapons loaned from museums,” because they don’t want guns in schools and the event might freak out students who come from war-torn lands. They address these arguments a lot more diplomatically than we would, that’s for sure. These people should be utterly ashamed of themselves.

Scott Taylor, writing in the Halifax Chronicle-Herald, notes that “2011 will realize the highest casualty figures in the decade-long intervention” in Afghanistan, and that recent events — the bombing of a personnel carrier in Kabul that killed 17 people, including a Canadian soldier; an Afghan soldier opening fire against Australian soldiers — highlight that while Canadians may be safer in their non-combat roles, Afghanistan as a whole remains a mess. “Such dubious results … have many Canadians questioning Canada’s decision to continue putting our soldiers’ lives at risk in order to train yet more young Afghan men how to fire assault rifles,” writes Taylor.

The Star‘s Rosie DiMannoargues Don Cherry should accept his honorary doctorate from Royal Military College, mostly because nobody’s offering any good reason that he shouldn’t. So, people think he’s a jerk. What does that have to do with anything? Agreed.

Civil servants on the warpathTheStar‘s Tim Harper previews the Professional Institute of the Public Service of Canada’s (PIPSC) battle against a federal government that, theoretically anyway, has austerity on its mind. The first serious skirmish is the PIPSC’s decision to join the Canadian Labour Congress, which it had hitherto avoided doing (in part) so as to seem scrupulously non-partisan and less militant than other unions. But theoretically desperate times have now called for theoretically desperate measures.

Brian Lee Crowley, writing in the Ottawa Citizen, suggests that a union concerned only with “protect[ing] public services” might have “joined up [with the CLC] when the Liberals were cutting 90,000 federal jobs in the 1990s, not after years of Tory-led public sector expansion.” It’s true, Crowley concedes, that the modern CLC (in the words of a report distributed to PIPSC members) “has a growing number of professional and ‘knowledge’ workers … and is no longer dominated by large industrial unions.” But in his view, that speaks more to “private sectors workers … abandoning the trade union movement in droves,” because “its class warfare mentality is singularly ill-suited to a freetrading world where workers and management must work together to best foreign competitors.”

Spend enough time driving around Alberta and you might still spot, on the very occasional older model vehicle, the yellow, Reform-era bumper sticker: “No Kyoto, no wheat board, no gun registry.” Those were radical enough ideas back in the mid-’90s that angry Westerners felt it important to brandish them rebelliously on their pickups and minivans.

They might as well scrape them off now: Canada’s obligations under the Kyoto accord have been tossed aside; the Conservatives’ bill to deregulate the wheat board is en route to a third reading in the House; and the government tabled a bill to kill the gun registry Wednesday.

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Prime Minister Stephen Harper came to Ottawa with a checklist of Western grievances he had committed to relieving. At the time it seemed like a long one. Turns out it wasn’t: After little more than five years in power, what early priorities he hasn’t scuttled — such as the Reform party’s one-time tendencies toward social conservative policy and populist democratic reforms — he’s nearly finished. He’s adding Western seats (as well as Ontario) in the House of Commons, and has almost reached the limit on Senate reform — setting term limits, encouraging provincial elections — at least till someone next has the nerve to reopen the Constitution.

With all that behind him, it might look like there’s little remaining of the Western-flavoured agenda that has animated so much of Mr. Harper’s crusade since he became leader of the Opposition in 2002. But as long as Mr. Harper’s in charge, the Conservatives will continue to be animated by the alienated spirit of the West, ever suspicious of the potential excesses of federal power, long after the wheat board and gun registry are gone.

After all, just going through the motions of day-to-day management isn’t much of a cause for a Prime Minister who’s spent his life driven by causes.

Preston Manning, founder of Reform and the spiritual leader of the latest Conservative movement, itemizes what he expects will constitute Mr. Harper’s priorities in the coming years: economic stability, deficit reduction, continental energy security with the U.S. and improved Canadian innovation and productivity. But it’s not all that hard to imagine a business-friendly Liberal — a John Manley or even a Jean Chrétien, just as readily championing those same objectives.

“As conservative values become more Canadian values, on the one hand that’s something Conservatives should be happy about,” says Mr. Manning. “But the downside of it is that those values no longer become distinguishingly Conservative.”

It’s hard to imagine that Mr. Harper would be satisfied, anyway, with merely being a competent economic steward: He’s spent his leadership working to remake the country in a more traditional, conservative image — reviving royal designations in the Armed Forces, installing royal portraits at our embassies, reasserting Judeo-Christian values in the immigration guide — while gradually dismantling post-modern Liberal imprints on the nation. More importantly, to understand the Prime Minister, it’s necessary to understand that he looks upon the wheat board, Kyoto, the gun registry and an unelected, unaccountable Senate not merely as individual irritants to the West. To him, these are symptoms of a much larger offence: the growth of a powerful and intrusive centralized federal government.

A meddlesome Ottawa has historically been more objectionable west of Ontario simply because Ottawa has historically tended to privilege central Canadian interests over smaller provinces. But decades of brooding over the National Energy Program, distorted equalization formulas and other plagues of Western alienation, have convinced Western conservatives, including Mr. Harper, that the problem is a structural one; that, before now, national governments have sought to overpower the provinces in the federal arrangement, using transfers and law as carrot and stick to entice and, where necessary, demand obedience to national priorities.

It’s a philosophy that can be seen everywhere in Mr. Harper’s approach over the past five years: Clearly an elected, equal Senate would provide the necessary and potent provincial check on power at the federal level; it’s in his fight against grand carbon-trading schemes and sweeping First Nations funding packages; his child-care allowance has effectively thwarted attempts by Ottawa to encroach on provincial education policy; his tax cuts (now as politically difficult for a different government to reverse as the child-care cheques) are as much about constraining Ottawa’s future ability to raise funds — thereby limiting the potential for grand national schemes — as they are about streamlining the economy. In the Tories’ eyes, even the federal deficit, a symbol of a government straining to manage what it already has on its plate, may well be preferable to a government capable of raising so much money it would be sorely tempted to find ways to spend it.

The Tories aren’t “revolutionizing government, but they are certainly differentiating it from a large statist [government],” says Faron Ellis, a political scientist at Lethbridge College, author of a book on the Reform party’s rise. Whether led by Paul Martin, Stéphane Dion or Michael Ignatieff, the Liberals have proposed “a large state program for every problem real or perceived,” he says. The Conservatives’ approach: “governments can do things but they’re going to do it through incentivizing individuals and provinces.”

It’s about getting “rid of the idea that if things aren’t going well it’s because the government isn’t taking care of us,” adds Ted Byfield, whose defunct Alberta Report magazine first gave voice to the Reform party’s agenda — rid Canadians of “the entitlement mentality that has been bred into us.”

It’s long been clear that Mr. Harper’s purpose has been to make the Conservatives into the new natural governing party. The point isn’t merely to govern, but to transform the nation, through politics and structural shifts, away from more Liberal (or, should it ever get elected, NDP) experiments in centralization. The original list of Western grievances may be nearly fixed, or fixed well enough. Mr. Harper undoubtedly sees his next big task as finding ways to obstruct such things from ever happening again.

In the last Parliament, the Harper government introduced legislation to expand the House of Commons by about 30 seats, in order to accommodate the growing populations of Alberta, British Columbia, and Ontario — all of which are currently under-represented. The New Democrats opposed giving these three provinces more seats, unless Quebec retains a fixed proportion of the new total (and does so in perpetuity). This proposal is unconstitutional. Yet so far, neither the Harper government itself nor the media have criticized the New Democrats’ proposal, or their seeming ignorance as to Canada’s foundational law.

Section 52 of the Constitution Act, 1867, sets out the fundamentals of our electoral system: “The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.” (Emphasis added.) Proportionate representation, under our Constitution, means representation by population in a first-past-the-post electoral system. Section 52 necessarily means that no province may receive additional seats that its population does not warrant. Clearly, the New Democrats’ suggestion that Quebec receive additional seats that its population does not warrant would “disturb” the principle of proportionate representation and therefore violate this section of the Constitution Act, 1867. The NDP’s desire to solidify their electoral base in Quebec is understandable, but doesn’t surmount the law of the land.

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Section 51 contains the formula by which seats in the House of Commons are distributed and allocated amongst the provinces, which the Harper government’s bill would amend. Since the government would only change the formula, and not the principle of representation by population, the Parliament of Canada alone can amend the Constitution Act, 1867, by passing this bill. The new amending formula would set the number of persons per riding at the national average of 108,000, and therefore allocate 30 new seats to Alberta, British Columbia, and Ontario, whose ridings generally contain far more people than average.

The NDP propose, however, that Quebec maintain a fixed one-quarter of the seats in the House of Commons (near its current 23%). Quebec would then automatically gain new seats every time the House of Commons is expanded, irrespective of increases or decreases in Quebec’s population, to preserve its 25%. This idea could only be implemented by amending the electoral formula found in Section 51 (a straightforward proposition), and changing the principle of proportionate representation altogether. The latter would require Parliament’s approval, and seven provincial legislatures representing at least 50% of the total population.

In other words, it would never pass — Quebec might support it, but why would six other provinces agree to give another province disproportionate clout at the expense of all others?

The New Democrats have never presented their case as a constitutional amendment. I recently saw NDP MP Paul Dewar at an event, and directly asked him why the NDP would propose something that violates the Constitution. he dodged the question, and said only that Quebec’s special status in the federation warranted a fixed percentage of seats. The NDP’s party line, so to speak.

But this position is disingenuous, at best, and it is perplexing that the Tories have been unwilling to point out the obvious — any proposal to give Quebec a fixed percentage of the seats in Parliament is simply illegal. Perhaps the Conservatives prefer silence to open confrontation with Quebec nationalists, but the law is on their side.

The bill to rebalance Parliament will need to be introduced soon, so that the complex job of creating new ridings can be complete in time for the next federal election. The NDP can be expected to continue to insist upon special status for Quebec irrespective of the supreme law of the land. This is unbefitting their role as Canada’s Official Opposition, and they should be held to account.

National Post

James is an MA candidate at the University of Ottawa and blogs on parliamentary and constitutional issues at Parliamentum.org.

Liberal MP Stéphane Dion is urging the New Brunswick government to give a sober second thought to supporting a Tory Senate reform bill, labelling it a “constitutional Trojan horse” that could open the door to weakening New Brunswick’s representation in the upper chamber.

In a letter to the New Brunswick Telegraph-Journal, former federal Liberal leader took aim at Premier David Alward’s pledge to give New Brunswickers the opportunity to elect their representatives to the senate.

Alward is the first Atlantic premier to embrace Prime Minister Stephen Harper’s Senate Reform Act, introduced in June, which would limit new senators’ terms to nine years and establish guidelines for provinces to voluntarily hold Senate nominee elections.

“New Brunswick has always argued — rightly and rightfully — that the fundamental character of the Senate cannot be changed by Parliament alone,” said Dion, the Liberal democratic reform critic.

“Such a fundamental change would also require the support of at least seven provinces representing 50% of the nation’s population.

“If the provinces accept that the Senate’s character could be changed by Parliament alone, where will it end?”

He later adds: “If a Prime Minister is permitted to ‘get around’ the Constitutional amending formula, why would he or she not be allowed to also ‘get around’ the need for consent to change provincial representation?”

The 105-seat Senate’s power is tilted eastward, with Atlantic Canada holding 30 seats — including 10 in New Brunswick — and Ontario and Quebec 24 apiece. The four western provinces have just six each, while the three northern territories each have one.

Alward has said he is keenly aware that small provinces such as New Brunswick soon may find their voices diluted in the House of Commons, where it’s expected more seats will be dedicated to fast-growing western and central Canadian provinces.

The premier said that endorsing an elected senate will help ensure that New Brunswick will remain with a strong representative voice in the second chamber.

Tim Uppal, Canada’s minister of state for democratic reform, responded Wednesday by saying the federal government is within its powers in moving toward a more democratic senate.

“The Senate status quo, where senators have no democratic mandate from Canadians and can serve terms as long as 45 years, undermines the upper chamber’s effectiveness and legitimacy as a democratic institution,” Uppal said in a statement.

“Since Canadians have been clear in saying that they have no appetite for long, drawn-out constitutional battles, we are proceeding with Senate reform that is reasonable, is achievable, and is clearly within the federal government’s jurisdiction to implement.”

Kate Davis, a spokeswoman in Uppal’s office, also noted that any changes to the number of Senate representatives require opening the Constitution and the consent of seven provinces equalling at least 50% of the population of all the provinces.

Dion also warned that the proposed Senate reform could subject Canada to political gridlock similar to the U.S. Congress, where the two elected chambers routinely paralyze each other.

“In fact, the situation could be even worse in Canada than in the United States, as we do not have a constitutional mechanism to solve disagreements between two elected chambers claiming the same legitimacy to speak for the people,” Dion said.

The federal NDP, the official opposition in Ottawa, strongly opposes Harper’s Senate Reform Act, warning that it would create, within the next generation, a complicated system with half the senators appointed and the other half elected.

The Quebec government has said it will challenge the constitutionality of the legislation in court.

And some experts and politicians in the West have argued that making the Senate democratically legitimate will hurt British Columbia and Alberta by increasing senators’ willingness to use their considerable powers to advance legislation that isn’t in the interests of the two provinces.

Dion said the Senate is in need of reform, but that it needs to be done with the full involvement of the provinces.

“Such a huge change in our political system should be carefully evaluated by the Parliament of Canada and all its provincial constitutional partners, including the Legislative Assembly of New Brunswick.”